Upon
Plaintiffs' Motion for Summary Judgment on Claims of
ComparativeNegligence and Mitigation of Damages DENIED
WITHOUT PREJUDICE

Upon
Defendants' Motion in Limine to Preclude Evidence of
SubsequentRemedial Measures, Evidence Intended to be
Protected by Peer Review Privilege, and Evidence of
Expressions of Apology, Sympathy, or Compassion GRANTED IN
PART

Upon
Defendants' Motion in Limine to Preclude Evidence of
Linda Wilkinson's Medical History and to Any Changes in
Telephone Triage Procedures GRANTED IN PART

Upon
Defendants' Motion in Limine to Limit the Testimony of
Neil Kaye, M.D.DENIED

Upon
Plaintiffs' Motion in Limine to Exclude Testimony of
Stephen Mechanick, M.D. DENIED

MEMORANDUM OPINION

ROCANELLI, J.

This is
a medical negligence case stemming from alleged injuries
suffered by Plaintiff Charuporn Robinson ("Mrs.
Robinson") after she developed an infection in her
chemotherapy port site. Mrs. Robinson and her husband, Peter
Robinson, (collectively, "Plaintiffs") filed suit
against Regional Hematology and Oncology, P.A.
("RHOPA") and Dr. Ramya Varadarajan (collectively,
"Defendants"). Plaintiffs allege that Dr.
Varadarajan and the staff at RHOPA acted negligently by
delaying to bring Mrs. Robinson in for treatment, which
caused Mrs. Robinson to suffer substantial injuries.
Defendants filed an answer denying liability and asserting a
number of affirmative defenses, including comparative
negligence and failure to mitigate damages.

Trial
is scheduled to begin on June 25, 2018. The parties have
completed discovery and Plaintiffs have moved for partial
summary judgment on Defendant's claims of comparative
negligence and mitigation of damages. The parties have also
filed multiple motions in limine. This is the
Court's decision on Plaintiff's motion for summary
judgment and the parties' motions in limine.

FACTUAL
BACKGROUND

Mrs.
Robinson was a breast cancer patient of Dr. Varadarajan at
RHOPA. Mrs. Robinson's chemotherapy regimen was to
consist of six cycles of chemotherapy. Mrs. Robinson received
her second chemotherapy cycle on January 19, 2015. From
January 21, 2015 to January 28, 2015, Mrs. Robinson called
RHOPA multiple times with various complaints. Mrs. Robinson
was next seen at RHOPA on January 28, 2015.

At
approximately 11:38 a.m. on January 28, 2015, Mrs. Robinson
spoke to a nurse at RHOPA to advise, among other things, that
her chemotherapy port site was hurting and leaking, that her
body was numb and ached, that she felt like she was dying,
and that she wanted to be seen by Dr. Varadarajan. At that
point, the staff at RHOPA advised Mrs. Robinson to go to the
emergency room. Mrs. Robinson stated that she would prefer to
be seen by Dr. Varadarajan. The RHOPA staff scheduled an
appointment with Dr. Varadarajan for approximately 2:30 p.m.

At her
appointment, a RHOPA nurse evaluated Mrs. Robinson and
discovered that her chemotherapy port site was infected. Mrs.
Robinson was sent to her breast surgeon's office, where a
nurse removed the infected port. Mrs. Robinson was then sent
to the emergency room at Christiana Hospital, where she was
admitted for treatment of the infection. Mrs. Robinson was
admitted for ninety-two days, during which time she developed
sepsis and respiratory failure. Mrs. Robinson was on life
support for twenty-seven days and on a ventilator for
sixty-three days. Mrs. Robinson's four remaining
chemotherapy treatments were cancelled.

PLAINTIFFS'
MOTION FOR SUMMARY JUDGMENT

Plaintiffs
move for summary judgment on Defendants' claims of
comparative negligence and failure to mitigate damages.
Plaintiffs contend that Defendants' claims of comparative
negligence and mitigation of damages go to Mrs.
Robinson's initial refusal to go to the emergency room,
which delayed her treatment by approximately three to four
hours. Plaintiffs assert that the Defendants' nurse
expert testified that patients undergoing chemotherapy are
instructed to avoid places presenting a higher risk of
infection, such as an emergency room. Plaintiffs also assert
that Defendants' experts concede that the three to four
delay in Mrs. Robinson's treatment on January 28, 2015
did not make a difference in the outcome. Therefore,
Plaintiffs argue that Defendants cannot establish the
affirmative defenses of comparative negligence and failure to
mitigate damages.

In
response, Defendants instead emphasize Mrs. Robinson's
action or inaction prior to January 28, 2015. Defendants
argue that Mrs. Robinson was instructed to advise the staff
at RHOPA of any redness, tenderness, or swelling around her
chemotherapy port site, at which point the staff would have
advised that she be treated. Defendants further contend that
Mrs. Robinson kept a diary detailing pain and redness at her
chemotherapy port site in the days leading up to January 28,
2015, but that she failed to inform the staff at RHOPA of
these symptoms. Defendants argue that Plaintiff's own
expert admits that the outcome would have been different if
Mrs. Robinson had begun treatment for the infection on any
day prior to January 28, 2015. Therefore, Defendants argue
that evidence of comparative fault and failure to mitigate
damages should be presented to the jury.

The
Court may grant summary judgment only where the moving party
can "show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law."[1] A genuine issue of material
fact is one that "may reasonably be resolved in favor of
either party."[2] The moving party bears the initial burden
of proof and, once that is met, the burden shifts to the
non-moving party to show that a material issue of fact
exists.[3] At the motion for summary judgment phase,
the Court must view the facts "in the light most
favorable to the non-moving party."[4] Summary judgment
is only appropriate if Defendants' claims lack
evidentiary support such that no reasonable jury could find
in their favor.[5]

Plaintiffs
are not entitled to summary judgment on Defendants'
claims of comparative negligence and failure to mitigate
damages because there are genuine issues of material fact in
dispute. While Plaintiffs contend that Defendants' claims
go solely to Mrs. Robinson's actions on January 28, 2015,
Defendants instead rely on Plaintiff's actions on the
days leading up to January 28, 2015 to supports its claims.
To that end, while Plaintiffs argue that the staff at RHOPA
should have told Plaintiff to come in earlier for treatment,
Defendants contend that Plaintiff should have mentioned any
symptoms at her chemotherapy port site earlier, pursuant to
RHOPA's instructions. Viewing the facts most favorable to
Defendants, a reasonable jury could conclude the Mrs.
Robinson's actions contributed to the severity of her
injuries. Therefore, summary judgment is inappropriate, and
Defendants' claims of comparative negligence and failure
to mitigate damages may be presented at trial.[6] The standard for
consideration of these issues at that time will be Delaware
Rule of Civil Procedure 50.[7]

MOTIONS
IN LIMINE

I.Defendant's Motion In Limine to Preclude
Evidence of Subsequent Remedial Measures, Evidence Intended
to Be Protected by the Peer Review Privilege, and Evidence of
Expressions of Apology, Sympathy, or Compassion

Following
Mrs. Robinson's hospitalization and treatment, RHOPA
conducted an Action Review of its telephone triage policy to
determine if any policy changes could prevent a similar
outcome in the future. After its review, RHOPA produced two
documents containing recommended changes to its telephone
triage policy. The first document was for internal use within
RHOPA, and the second was shared with Mrs. Robinson's
family.

Defendants
argue that both documents are evidence of subsequent remedial
measures, and are inadmissible under Delaware Rule of
Evidence 407 ("Rule 407"), which provides,
"When after an injury or harm allegedly caused by an
event, measures are taken which, if taken previously, would
have made the injury or harm less likely to occur, evidence
of the subsequent measures is not admissible to prove
negligence."[8] However, Rule 407 also provides that
evidence of subsequent remedial measures may be admissible if
offered for another purpose, such as "providing
ownership, control or feasibility of precautionary measures,
if controverted, or impeachment."[9]

Plaintiffs
concede that evidence of subsequent remedial measures is
inadmissible to prove negligence. Therefore, evidence of any
changes to RHOPA's telephone triage policy made after
Plaintiff's injuries shall not be admissible to prove
negligence. However, to the extent that the evidence so
provides at trial, evidence of RHOPA's subsequent
remedial measures as addressed in the document provided to
Mrs. Robinson's family may be admissible for another
purpose, such as proving feasibility of precautionary
measures, pursuant to Rule 407. If admission of this evidence
is considered, the Court would apply the balancing test
required by Delaware Rule of Evidence 403 ("Rule
403").

Defendants
argue that the document produced for internal use within
RHOPA is inadmissible as it is protected by the peer review
privilege. The Delaware Medical Peer Review Statute
("Peer Review Statute") protects the good faith
actions of members of medical peer review committees
"whose function is the review of medical records,
medical care and physicians' work, with a view to the
quality of care and utilization of hospital or nursing home
facilities."[10] The Peer Review Statute exempts the
records and proceedings of such peer review committees from
discovery.[11] The Peer Review Statute is
"intended to encourage the frank and open discussion of
[physician] … performance by medical peer review
committees" with a view "towards improving the
quality of medical care in Delaware."[12] Plaintiffs do
not dispute Defendants' arguments that the peer review
privilege applies. Therefore, to the extent that RHOPA's
Action Review constituted a medical peer review committee as
contemplated under the Peer Review Statute, RHOPA's
internal document is privileged from disclosure under the
peer review privilege.[13]

Defendants
also assert that members of the Plaintiffs' family
testified at their depositions about expressions of apology,
sympathy, and compassion made by Dr. Varadarajan. Defendants
argue that this evidence should be precluded under 10 Del.
C. § 4318(b) ("Section 4318(b)").
Section 4318(b) provides that statements of a healthcare
provider "that express apology …, sympathy,
compassion, condolence, or benevolence relating to the pain,
suffering, or death of a person as a result of an
unanticipated outcome of medical care" are inadmissible
in a civil action brought against the health care
provider.[14] Plaintiffs concede that such statements
are inadmissible under Section 4318(b). Therefore, any
evidence that Dr. Varadarajan made statements of apology or
sympathy to Plaintiff's family shall be inadmissible at
trial.

II.
Defendant's Motion In Limine to Preclude
Evidence of Linda Wilkinson's Medical History and
Regarding Any Changes in Telephone Triage Procedures

Linda
Wilkinson ("Wilkinson") is a registered nurse
employed at RHOPA. Until October 2016, Wilkinson was
responsible for overseeing telephone triage. However, during
2014 and 2015, Wilkinson had help with her duties from other
nurses at RHOPA. During her deposition, Wilkinson testified
that RHOPA made changes to its telephone policy in October
2016, after Mrs. Robinson's treatment at RHOPA. In
addition, Wilkinson testified that around the time period of
October 2016, Wilkinson was hospitalized for stress relating
to the number of phone calls she was receiving.

Defendants
reiterate that any evidence of changes to RHOPA's
telephone triage policy should be precluded under Rule 407.
As stated above, evidence of RHOPA's subsequent remedial
measures shall not be admissible to prove negligence, but may
be admissible for another reason, such as proving control or
feasibility, [15] as long as the probative value is not
substantially outweighed by the danger of unfair
prejudice.[16]

Defendants
also assert that Plaintiffs should be precluded from entering
any evidence pertaining to Wilkinson's medical condition
or hospitalization. Defendants assert that such evidence is
irrelevant under Delaware Rule of Evidence 401 ("Rule
401"), as it post-dates the medical care received by
Mrs. Robinson by over one year. Defendants also argue that
such evidence should be excluded under Rule 403, because its
probative value is substantially outweighed by the danger of
unfair prejudice and the potential for confusing and
misleading the jury. In response, Plaintiffs agree not to
refer to Wilkinson's hospitalization without first
seeking approval of the Court outside of the presence of the
jury. As a result, the Court need not decide at this point
whether evidence of Wilkinson's hospitalization would be
inadmissible. Rather, the Court will conduct the necessary
analysis under Rules 401 and 403 should the issue arise at
trial.

III.
The Parties' Motions In Limine to Preclude
Expert Testimony

Plaintiffs
and Defendants have both filed Motions in Limine
pertaining to each party's expert testimony. The
admissibility of expert testimony is governed by Delaware
Rule of Evidence 702 ("Rule 702"), which provides:

If scientific, technical or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training or education may
testify thereto in the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and
...

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